Libel, Privacy and Copyright:
The Editor as Last Defense

Editors are the ones who give the "go" or "no go" on a whole story or any aspect of it. So they're the ones who ultimately are responsible for what is published. (This is, in part, why they generally get paid more than the reporters.)

You need to be at least passingly familiar with all aspects of media law -- or know where to quickly put your hands on the information -- in order to help reporters get access to information, protect their sources and more.

But there are at least three areas of law that editors should know cold: libel, privacy and copyright.

Libel is the biggest category of law limiting free speech. It probably also is the area of law most likely to make journalists lie awake nights worrying.

The Editorial Eye is right: It's usually not the big stories that get you. It's the little ones that you never gave a second thought until too late.

"Libel is injury to reputation. Words, pictures or cartoons that expose a person to public hatred, shame, disgrace or ridicule, or induce an ill opinion of a person, are libelous." (The AP Libel Manual)

For someone to win a libel suit against your news organization, all these things must be proved in court:

* The statement was false.

* It was a statement of fact (not opinion).

* The statement was published.

* The person who is suing was identifiable in the statement.
* The person suffered damage.
*The news organization was at fault.

News organizations have several defenses against libel claims:

* The statement cannot be proved false.

Provable truth is the only complete and unconditional defense against libel.

But proving truth can be difficult. Providing that what you published was the whole truth is even harder.

* The statute of limitations has expired.

The time a plaintiff has to sue for libel varies by state. I believe it is two years after publication in Iowa, Illinois and Minnesota, but three years in Wisconsin.

* The statement was privileged.

Public officials acting in their official capacities have absolute privilege to say anything.

Journalists have qualified privilege to provide a full and fair account of anything said during an official proceeding.

* The statement was an expression of opinion rather than a statement of fact.

Editors should be sure that opinion pieces are clearly labeled and their assertions supported.

This is a tricky area, and I suspect online forms such as blogs are going to make it even trickier.

* The person suing is either a public official or a public figure.

If so, the plaintiff has to prove the statement was made with actual malice (you knew it was false but published it anyway) or reckless disregard for whether it was true or false.

If the plaintiff is not a public official or public figure, he or she only needs to provide negligence -- you didn't do your job appropriately in checking out the information.

The Editorial Eye offers excellent tips to help editors guard against libel in the stories they edit:

* Recognize the danger zones.

Think carefully about any negative statements about a person in a story. These might include accusations or even implications that the person committed a crime (before being found guilty in court), engaged in undesirable business practices, had a loathsome disease or was immoral.

Other danger areas include making someone look ridiculous or dredging up irrelevant information from the person's past. (Ah, but exactly what is irrelevant ...?)

* Watch for juxtapositions, such as second references within a story or the use of photos that could create an unintended (and damaging) impression.

* Make changes and write headlines carefully.

Be sure not to change meanings in text or to create misleading headlines -- or cutlines or teasers or anything else that editors write.

Headlines can be especially damaging because so many more people read the headline than read the story, and courts may consider headlines separately from stories.

* Check the sources.

If a story includes a source who does not hold absolute privilege and who says something negative about someone else, you need to triple-check for both credibility of that source and confirmation from other sources.

Sources can and do use journalists to "get at" an enemy -- leaving you liable for their vendetta.

* Check for the response.

If the story contains negative statements about a person or group, every effort must be made to give that person or group an opportunity to respond.

Your best bet, if in fact the story has to run at all without a response, is to detail what those opportunities were -- not only out of fairness (important though that is) but also to legally cover your backside.

* Develop a procedure for responding to someone who says (screams, usually) that he or she was libeled.

Short version: This is why your company's lawyer gets the really big bucks. Call the lawyer pronto, and involve him or her in whatever communications ensue with the person claiming libel.

Prompt and clear retractions or corrections do not take away the libel -- but they often take away the person's anger or at least assuage it, making him or her less likely to sue. Even if you do wind up in court and lose, you likely will have to pay less in damages than without the correction.

In particular, avoid two common mistakes that journalists make in dealing with someone enraged by something they published.

* Mistake A: Trying to calm the person down by apologizing for your error (aka admitting guilt).

* Mistake B: Getting mad yourself. Be calm and, especially, unfailingly polite.

Privacy is another issue that not infrequently lands journalists in court, or at least forces them to deal with threats of ending up in court.

It is relatively difficult to win a libel case, mainly because of the standard of truth. The bar is a lot lower for winning a privacy case, where truth is irrelevant.

The basic idea of privacy law, which is only about 100 years old and continues to evolve, is that everyone has a right to be left alone. (Public figures have fewer such rights, at least in a legal sense, but everyone has them.)

Specifically, privacy can be invaded in four ways that both reporters and editors must know about:

* Intrusion into a person's seclusion or solitude, or into private affairs.

Examples include forcing your way into a source's home or going through personal papers to get a story.

* Public disclosure of embarrassing private facts, such as revealing a person's notorious past when it has no bearing on the present.

This is a problem area for libel, too, but again, privacy invasion is easier to prove in court.

* Publicity that places a person in a false light, for instance by creating a misleading impression.

* Misappropriation of a person's name or likeness for personal advantage.

This one usually applies to celebrities or public figures. They have trouble winning libel cases, but invasion of privacy claims are, once again, easier.

Copyright law protects journalists, but it can also get them in trouble.

* Copyright was established in the original U.S. Constitution, so it predates the First Amendment.

Basically, it gives authors the right to control the reproduction and use of their creative expressions.

That is, the person who published the material owns it, and it cannot be used by someone else without payment. To do so would be plagiarism, which has been a professional death trap for a whole slew of journalists recently.

* Most journalism is considered "work for hire."

That is, although an individual wrote the story or took the photo, once it is published, the copyright is held by the company for which that individual works.

For instance, once Jayne's editorial columns are published in the Daily Iowan, the DI -- not Jayne -- is the copyright holder. (In fact, Jayne would need to get permission from the DI publisher to sell her column to any other outlet.)

* Historically, the law has covered materials fixed in tangible form, such as on a piece of paper.

But the law has been extended to cover digital material, including online stories.

Journalists have some (but not blanket) protection under "fair use" standards of copyright law. Editors must make sure that any information that was not originally gathered by the reporter is properly and fully attributed in the story.

Should a suit for infringement of copyright go to trial, the court will consider four factors related to a journalist's claim of fair use:

* The purpose and nature of the use, in particular whether it was intended to generate personal (or company) profit.

* The nature of the copyrighted work, such as its length, whether it is fact or fiction, the effort that went into creating it and its availability.

* The amount of the total work that was used. The more that was copied, the weaker the fair use defense.

* The effect the use will have on the value or profit-making potential of the original work.

This generally is the most important factor. The issue often is whether the copy will have the same function as the original and therefore compete with it, or even supplant it, in the marketplace.